Here are my first, rapid thoughts and more than anything else a recount of the process leading to the Dominican withdrawal from the Inter-American Court of Human Rights. I will probably post more soon on different aspects of this process.
On Tuesday,
November 4, the Dominican
Constitutional Court declared the State's adherence to the Inter-American Court of Human
Rights (IACtHR) as inconstitutional. With effect one year from now the
Dominican Republic will join Venezuela as the only other Latin American nation
that does not accept the jurisdiction of the IACtHR. The country, however, is
still bound by the American
Convention which it signed and ratified in 1977, and be part of the system
of supervision of human rights by the Inter-American
Commission on Human Rights.
The
Dominican Constitutional Court in its sentence 0256/14
declared that the procedures by which the Dominican State adhered to the
jurisdiction of the IACtHR in 1999 were inconstitutional. The Dominican
Republic as the last Latin-American nation, accepted the IACtHR's jurisdiction
by presidential decree in 1999 during the first administration of President
Leonel Fernández (PLD -Partido de la Liberación Dominicana). The key question
the Constitutional Tribunal considered was whether the adherence to the
IACtHR's jurisdiction required congressional confirmation or not. The
Constitutional Tribunal argued that it did and that President Fernández at the
time had usurped his presidential powers. The Constitutional Tribunal based its
decision on article 37.14 of the 1994
Constitution, which states that it is a faculty of Congress to approve or
reject any international treaty or convention, in addition to a series of other
articles (55.6, 46, and 99.3/4) The Prosecutor General (in 2013), however,
argued that the adherence to the IACtHR's jurisdiction followed naturally from
the ratification of the American Convention according to its article 62.1, and
that congressional ratification was not required. Furthermore, the Prosecutor
General argued that the adherence to the IACtHR did not constitute the signing
of an international treaty. In 2005, however, during President Fernández's
second administration, the Prosecutor General (same person as in 2013), argued
in favour of declaring unconstitutional the 1999 decree signed by President
Fernández during his first administration (1996-2000).
The
background for the decision made by the Constitutional Tribunal is the issue of
the right to nationality for children of Haitian migrants born on Dominican
soil and in particular two sentences that deal with this issue in the IACtHR. In
a groundbreaking sentence, Children
Yean and Bosico vs. the Dominican State, the IACtHR sentenced the State to
give Dominican citizenship to the children of Haitian ascent Yean and Bosico,
change and ease bureaucratic procedures for obtaining citizenship and respect
the State's own ius soli clause in
the 1966 Constitution. The bone of contention then and later was whether
children of illegal migrants born in the Dominican Republic had a right to
Dominican citizenship. The Yean and Bosico sentence argued that the illegal
status of migrants was not hereditary and that the Dominican legal system at
the time did not have any exemption in the ius
soli clause for children of illegal migrants. The State also argued that
Haitian migrants should be considered in transit - children of persons in
transit, in addition to children of diplomats, born on Dominican soil were
exempt from the ius soli clause - but
the IACtHR did not accept that argument and pointed to the fact that transit in Dominican law had since 1939
been defined as a stay of maximum 10 days. After this sentence opponents of the
Inter-American System of Human Rights filed a suit of unconstitutionality in
November of 2005 against the Dominican adherence to the IACtHR in the Supreme
Court (at the time also the Constitutional Court). It was on the basis of this
petition that the Constitutional Tribunal emitted its sentence on November 4.
In addition, legal actions through migration laws (2004) and a reformed
Constitution (2010) aimed to restrict the ius
soli clause and exclude children of illegal migrants from their right to
Dominican citizenship. Furthermore, the Central Electoral Board (responsible
for emitting birth certificates and overseeing the civil register) and the
Constitutional Tribunal (in a well known sentence, 168/13)
gave the laws retroactive effect back to 1929.
Even though
the sentence declaring the Dominican State's adherence to the IACtHR for
unconstitutional had been expected for some time, a second sentence in the
IACtHR that came only a week earlier, triggered the latest action of the
Constitutional Tribunal. In the sentence in the case Dominican
and Haitian people expelled vs the Dominican State, published October 28,
the IACtHR sentences the State to repair damages for Dominicans and Haitians
illegally expelled in 1999 and 2000 from the Dominican Republic. The case
discusses the long-standing and serious problem of illegal expulsions of
Dominicans and Haitians (often on the merit of their skin colour) and condems
the State's activities. The more critical issue for the Dominican State is the
fact that the unanimous sentence declares that the Cosntitutional Tribunal
sentence 168/13 - which gave the restriction of ius soli in the 2010 Dominican Constitution retroactive effect back
to 1929 and stripped many people of their Dominican citizenship sending many
thousand Dominicans and Dominican-Haitians into statelessness - should de facto be annulled (or declared
without any effect). In addition the sentence also specifies that any
constitutional, legal, or administrative decision or interpretation that
restricts the right to citizenship of children born on Dominican soil should
also be rendered without any effect. This means that the IACtHR basically
annuls all actions made by the Dominican State in the migratory and citizenship
areas restricting the ius solis of
the previous Constitution (see pp. 171-172 of the sentence). One week after the
IACtHR published its sentence, the Constitutional Tribunal withdrew the
Dominican Republic from the IACtHR. All is not totally black, however, since
the Dominican state still must meet its obligations to comply with all the
sentences against the State in the IACtHR. On the other hand, following the
logic of the Constitutional Tribunal, dominant voices in the Dominican Republic
are bound to argue the opposite on the argument that the Dominican Republic
never accepted the jurisdiction of the IACtHR and that this means that the
State has no obligation to comply with the IACtHR sentences.
This is a
dark moment for the Dominican democracy and the protection of the most
vulnerable groups living in the country, the Haitian migrants and
Dominican-Haitians. It is also a dark moment for the IACtHR and the whole
IASHR, which now results weakened. Even thought the Dominican Republic may be a
small and unimportant country in Latin America it is still the most democratic
and democratically stable country to ever leave the IACtHR. Peru left in 2000
under Fujimori, an act that never took effect since Fujimori resigned not long
after, and Venezuela withdrew under Chávez (in addition Trinidad and Tobago
withdrew in 1998). The Dominican case, I fear, is likely to be the worst blow
of them all. Peru returned after re-democratisation with Fujimori's resignation,
and it is not unlikely that Venezuela would return should the Maduro-regime
fall or the opposition win a future election. Today, however, the Dominican
Republic is led by its most international human rights friendly government in
decades, if not ever, and the regime is a stable electoral democracy, not any
form of populist authoritarian regime. It therefore seems very unlikely today
that the Dominican Republic will return any time soon.
